Citation Nr: 0210297
Decision Date: 08/22/02 Archive Date: 08/29/02
DOCKET NO. 97-26 661 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for a back disorder claimed
as a residual of spinal tap and cyst removal.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Grace Jivens-McRae, Counsel
INTRODUCTION
The veteran served on active duty from November 1959 to
September 1961 and again from January 1962 to August 1962.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 1997 rating decision issued
by the St. Petersburg, Florida, Regional Office (RO) of the
Department of Veterans Affairs (VA).
In March 2000, the veteran presented testimony at a
videoconference Board hearing before the undersigned Board
member. 38 U.S.C.A. § 7107(e) (West Supp. 2001). A
transcript of the hearing is of record.
The case was remanded in November 2000, for further
development.
In July 2002, the veteran's representative raised the issue
of entitlement to service connection for a surgical scar of
the back. This issue is not presently before the Board and
is not inextricably intertwined with the issue on appeal.
See Harris v. Derwinski, 1 Vet App. 180 (1991). It is
referred to the RO for appropriate action.
This case is now ready for appellate review.
FINDING OF FACT
Since service, the veteran does not have a back disorder that
is a residual of spinal tap and cyst removal during service.
CONCLUSION OF LAW
A back disorder, claimed as a residual of spinal tap and cyst
removal was not incurred in or aggravated by active service.
38 U.S.C.A. §§ 1110, 1131 (West Supp. 2001); 38 C.F.R.
§§ 3.303(2001).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Service Connection
The veteran wants to establish service connection for a back
disorder claimed as a residual of a spinal tap and cyst
removal. The veteran claims this alleged disorder occurred
as a result of inservice incurrence.
Under applicable criteria, service connection may be granted
for disability resulting from disease or injury incurred in
or aggravated by military service. 38 U.S.C.A. §§ 1110,
1131. Service connection may be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Service medical records show that the veteran underwent
surgery in service for pilonidal cyst removal in March 1962.
The marsupialization of the pilonidal sinus occurred under
local anesthesia. The postoperative course was benign,
sutures were removed on the sixth postoperative day, and the
wound granulated slowly. He was discharged in April 1962.
Of import in this case is that the veteran's service medical
records were presumably destroyed in a July 1973 fire at the
National Personnel Records Center (NPRC). Service medical
records that showed that the veteran underwent surgery for
pilonidal cyst removal were obtained through a search which
eventually located his clinical records which were found
intact. However, no separation examination records were
located with these files.
After service, the first records indicating a back disorder
of any type was in July 1997. These records show that the
veteran was treated for back pain that was getting worse.
There was an indication that the veteran had surgery in the
1960's for a pilonidal cyst removal with spinal tap
anesthesia. The medical assessment was back spasm.
Additional VA records associated with the claims folder were
mostly unrelated to any back complaints. He did note during
a VA examination in March 2000, that he had a cyst removed in
1962 and had severe back pain.
In March 2000, the veteran testified at a video conference
hearing before the undersigned. He related that he underwent
surgery for cyst removal in April 1962 and has had a back
problem for many years. He stated that his back problems
include pain and tightness of the tailbone where he had a
spinal tap. After the surgery, he related that he was unable
to perform his duties because of back pain and he was given
an honorable discharge for the convenience of the Government.
All of these back problems occurred during his second period
of service as he related that he had not problems with his
back during his first tour of duty. He testified that he
presently has the same tightness and pain in the tailbone;
has not had any other injury during or after service; the
pain has gotten worse over the years; he does not remember if
he underwent a separation examination; and treatment by VA in
the 1990's consisted of Salsalate and physical therapy.
Pursuant to the Board's November 2000 remand, the veteran
underwent a VA examination in March 2001. The veteran
continued to complain of tightness of the back over the area
where he was given a spinal tap, that has gotten worse over
the years. The physical examination revealed some tenderness
on deep palpation over L2-L3 level, but the tenderness was
not reproduced when percussing the posterior process of all
vertebrae. The veteran exhibited cautious, wide-based gait,
but without a tendency to fall. Muscle strengths, reflexes,
and sensation were normal. The impression was chronic low
back pain due to spinal age-related degenerative changes,
with no discernable relationship to spinal anesthesia. The
examiner indicated that it was his opinion that the veteran's
pain was unrelated to past surgical procedures. A
December 2001 addendum was sought when the veteran's
representative indicated that the examiner had not reviewed
the veteran's service medical records indicating cyst removal
because those records were not located until after the
examination. The examiner indicated in the addendum that his
opinion had not changed and that there was no discernable
relationship between the veteran's back pain and surgical
procedure.
The evidence of record shows no findings since service of a
back disorder related to service. Although the service
medical records show that the veteran did have removal of a
cyst in service and the records do show that he underwent
local anesthesia, there is no evidence of record which
associates the veteran's present chronic back pain to either
the cyst removal or the anesthesia received in service. The
VA records only show that many years after service, the
veteran gives a history of a back disorder related to the
cyst removal and spinal anesthesia. The only indication that
the veteran has this claimed back disorder attributable to
service is the veteran's own statements of such. The veteran
has submitted no medical or lay evidence to support his
claim, and none of his assertions concerning the presence of
the back disorder is supported by any medical evidence of
record. It is well established that lay persons cannot
provide testimony when an expert opinion is required.
Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Moreover, the
veteran underwent VA examination in March 2001, wherein the
examiner specifically indicates that it is his opinion that
the veteran's back pain is due to spinal age-related
degenerative changes and unrelated to past surgical
procedures. The examiner reiterated this on a December 2001
addendum to the March 2001 examination report. Accordingly,
service connection is not warranted to a back disorder
claimed as a residual of spinal tap and cyst removal.
II. Veterans Claims Assistance Act of 2000 (VCAA)
The Board has considered whether VA has met its duties under
the VCAA, 38 U.S.C.A. §§ 5100 et. Seq. (2001), which became
effective on November 9, 2000. The VCAA redefines VA's duty
to assist and enhances the duty to notify claimants about
information and evidence necessary to substantiate a claim.
The VCAA also eliminates the requirement that a claim be well
grounded.
The Board concludes that, in this case, VA has substantially
complied with the duty to assist and the duty to notify
provisions of the VCAA. The veteran was informed of its
provisions by a February 2002 supplemental statement of the
case (SSOC). The RO informed the veteran of what assistance
VA would provide, time limits and who would manage his claim.
Various notices and communications, also from the RO, such as
the June 1997 statement of the case, and the February 2002
SSOC, informed the veteran of the applicable laws and
regulations needed to substantiate his claim. He submitted
additional evidence on behalf of his claim. The veteran had
the opportunity to testify at a hearing regarding his claim.
He provided personal hearing testimony before the undersigned
by videoconference hearing in March 2000. The Board
therefore finds that VA has complied with all obligations to
inform the veteran of the applicable laws and regulations and
with all duties to assist the veteran in the development of
the issue discussed above. Thus, a remand for further
technical compliance with the provisions of the VCAA is not
necessary.
ORDER
Service connection for a back disorder claimed as a residual
of spinal tap and cyst removal, is denied.
MARY GALLAGHER
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.